Justice may be blind but it’s got ears.
Today’s big legal story is a group of Appeals Court judges who are ticked off at President Obama for his remarks Monday about the possibility the Supreme Court will strike down his health care law.
Yesterday, an appeals court hearing a health care coverage case, proved that while the branches of government are separate, one can still hit the other in a food fight.
As Lyle Denniston at SCOTUSblog tells it:
At Tuesday’s hearing, Judge Smith, according to CBS News, said the President’s suggestion that it would be unprecedented for “unelected judges” to strike down a federal law that had won passage in Congress was “not a small matter.” He told government lawyer Dana Lydia Kaersvang: “I would like to have from you by noon on Thursday…a letter stating what is the position of the Attorney General and the Department of Justice in regard to the recent statements by the president. What is the authority of the federal courts in this regard in terms of judicial review?”
Today, the Justice Department lawyer is trying to figure out how to write a letter that, basically, says “my boss doesn’t know what he’s talking about.”
Above The Law calls it a “benchslap.”
Where do I come down on this? I confess that I’m of two minds. On the one hand, in support of the benchslap, I did get a chuckle out of this (somewhat bizarre) homework assignment. On a more serious note, to the extent that some members of the public might have been misled by President Obama’s statements, there was nothing wrong with Judge Smith availing himself of this “teachable moment,” to remind the public that federal judges not only have the right, but the duty, to strike down laws that are inconsistent with the Constitution.
On the other hand, President Obama’s original remarks amounted to silly political posturing, and perhaps they should have been ignored. It’s not shocking that the president made such comments in the first place; the executive is, after all, an icky political branch, and we are in the middle of an election year. But isn’t it beneath the dignity of life-tenured Article III deities to dirty their gavel-wielding hands with such ridiculousness? Should Judge Smith have simply ignored the president’s ill-considered comments?